Citation Nr: 0500562
Decision Date: 01/10/05 Archive Date: 01/19/05
DOCKET NO. 03 01-300 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey
THE ISSUES
1. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
2. Entitlement to service connection for bilateral hearing
loss.
3. Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
S. A. Mishalanie, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1969 to
September 1979.
This case comes to the Board of Veterans' Appeals (Board)
from a December 2001 decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Newark, New Jersey,
which denied the veteran's claims for service connection for
PTSD, bilateral hearing loss, and tinnitus. He filed a
timely appeal.
Unfortunately, because further development is needed before
the Board can make a decision, this appeal is being REMANDED
to the RO via the Appeals Management Center (AMC) in
Washington, DC. VA will notify you if further action is
required on your part.
REMAND
The RO's December 2001 decision was based, in part, upon a
review of the veteran's service medical records (SMRs) and
military records. But, these records are not in the claims
file. Apparently, in August 2004, the RO requested his SMRs
from the National Personnel Records Center (NPRC), and the
NPRC responded stating that his SMRs had already been sent to
the RO in May 2000. The record does not contain any
explanation as to what happened to his SMRs - whether a
search was ever conducted or whether they were deemed lost by
the RO. Thus, a remand is obviously necessary so an attempt
can be made to locate them. Furthermore, if they cannot be
located, the RO must notify the veteran, and attempt to
reconstruct the record.
Pursuant to the Veterans Claims Assistance Act (VCAA), VA has
a duty to assist a veteran in obtaining evidence necessary to
substantiate his claim. 38 U.S.C.A.
§ 5103A (West 2002), 38 C.F.R. § 3.159(c) (2004). With
regard to records in the custody of a Federal department or
agency, VA must make as many requests as are necessary to
obtain the relevant records, until and unless it determines
further requests would be futile. 38 C.F.R. § 3.159(c)(2)
(2004). Furthermore, VA is deemed to have constructive
notice of the existence of any evidence, including treatment
records, in the custody of a VA facility. Bell v. Derwinski,
2 Vet. App. 611, 612 (1992). In this case, the RO has not
complied with the VCAA and its implementing regulations.
The claims folder contains several references to the veteran
receiving treatment at various VA facilities, but those
records have not been requested or associated with the claims
file. For example, the report of the December 2001 VA ear
examination indicates the examiner reviewed an audiogram from
the Coatesville VA Medical Center (VAMC). Although the RO
obtained records of treatment from Coatesville since 2000,
the audiogram was not included with those records. Also, the
records indicate he was hospitalized at Coatesville in
September 1999. So any records prior to 2000 must be
obtained as well. In addition, there are references to
treatment at the Vineland Outpatient Clinic, Wilmington VAMC,
and Cape May clinic. So those records, as well as any other
treatment records from VA facilities, must also be obtained.
Turning specifically to the veteran's claim for PTSD, he
claims to have witnessed the rape and murder of a Vietnamese
woman in October 1969, while he was on active duty in the
Republic of Vietnam. (See VA Form 21-526, dated in October
1999). Service connection is granted for a disability
resulting from disease or injury incurred in or aggravated by
service. 38 U.S.C.A. §§ 1110, (West 2002); 38 C.F.R. §
3.303(a) (2004). Service connection for PTSD, in particular,
requires medical evidence establishing a diagnosis in
accordance with 38 C.F.R. § 4.125(a) (the diagnosis must
conform to DSM-IV and be supported by findings on
examination), credible supporting evidence that the claimed
in-service stressors actually occurred, and a link,
established by medical evidence, between the current
symptomatology and the claimed in-service stressors. 38
C.F.R. § 3.304(f) (2004); see also Cohen v. Brown, 10 Vet.
App. 128, 137-138 (1997).
The evidence necessary to establish the occurrence of a
recognizable stressor during service-to support a diagnosis
of PTSD-will vary depending upon whether the veteran engaged
in "combat with the enemy, "as established by recognized
military combat citations or other official records. See,
e.g., Hayes v. Brown, 5 Vet. App. 60, 66 (1993); Doran v.
Brown, 6 Vet. App. 283, 289 (1994). If VA determines that
the veteran engaged in combat with the enemy and his alleged
stressor is combat-related, then his lay testimony or
statement is accepted as conclusive evidence of the
stressor's occurrence and no further development or
corroborative evidence is required-provided that such
testimony is found to be "satisfactory," i.e., credible, and
"consistent with the circumstances, conditions, or hardships
of service." See 38 U.S.C.A. § 1154(b) (West 2002);
38 C.F.R. § 3.304(d) (2004); Zarycki v. Brown, 6 Vet.
App. 91, 98 (1993). If, however, VA determines either that
the veteran did not engage in combat with the enemy or that
he did engage in combat, but that the alleged stressor is not
combat related, then his lay testimony, in and of itself, is
not sufficient to establish the occurrence of the alleged
stressor. Instead, the record must contain other objective
information that corroborates his testimony or statements.
See Zarycki, 6 Vet. App. at 98.
When there is a current diagnosis of PTSD, the sufficiency of
the claimed in-service stressor is presumed. Cohen, 10
Vet. App. at 144. Nevertheless, credible evidence that the
claimed in-service stressor actually occurred is still
required. 38 C.F.R. § 3.304(f) (2004). And credible
supporting evidence of the actual occurrence of an
in-service stressor cannot consist solely of after-the-fact
medical nexus evidence. See Moreau v. Brown, 9 Vet. App.
389, 396 (1996). Corroboration does not require, however,
"that there be corroboration of every detail including the
appellant's personal participation in the identifying
process." Suozzi v. Brown, 10 Vet. App. 307, 311 (1997).
In this case, the veteran's claimed stressor is not combat-
related. Thus, his lay statements are not sufficient to
establish the occurrence of the event. So, pursuant to the
VCAA, the RO must assist him in attempting to verify it. The
Board notes the RO sent three letters to him requesting more
information about his stressor, but he did not respond.
Nonetheless, in his original claim, he provided the month,
year, and approximate location of the event, so the RO should
ask the U.S. Armed Services Center for the Research of Unit
Records (USASCRUR) to attempt to verify this event. The RO
should also obtain his military personnel records.
The Board also notes the veteran was diagnosed with PTSD in
September 2001, but the basis for this diagnosis is not
entirely clear. The report of the September 2001 examination
indicates his father was an alcoholic and physically abusive.
He admitted to using cocaine, and being in and out of
treatment centers. He also stated that he spent 4 years in
prison for forgery. At one point he was mugged and knocked
unconscious. During an objective clinical examination, the
examiner noted the veteran was:
neat and clean in appearance and dressed in
casual attire. He had fair eye contact and was
cooperative during the examination. He spoke
clearly and his speech was logical and goal-
directed. Affect was appropriate for what was
discussed. He was oriented x3 and his memory
appeared to be impaired for dates. His insight
and judgment appear to be fair. Though he
reports experiencing suicidal thoughts, at times,
he denies ever attempting to commit suicide or
experiencing suicidal or homicidal thoughts at
this time. He denied visual or auditory
hallucinations. There was no overt evidence of
any formal thought disorder.
Nonetheless, the examiner diagnosed him with PTSD -
apparently based on the veteran's self-reported description
of symptoms of intrusive thoughts, depression, feelings of
detachment, and sleep disturbances. An April 2003 VA
outpatient treatment (VAOPT) record from Coatesville
indicates his cocaine use caused his depression. A September
2001 record notes his PTSD was exacerbated by the mugging.
At the time of the September 2001 VA PTSD evaluation,
however, those VAOPT records were not in the claims file.
Therefore, after further development is completed, the
examiner should be asked to review the entire claims file,
and verify his earlier diagnosis of PTSD. If PSTD is
verified, the examiner must provide the rationale and basis
for the diagnosis.
Turning now to the veteran's claims for hearing loss and
tinnitus, at a December 2001 VA examination, he was diagnosed
as having noise-induced hearing loss based on a previous
audiogram that, as mentioned, is not currently of record. In
November 2003, a VA examiner reviewed his chart, and said
that although he would need to have an audiogram performed
before determining whether the veteran's hearing loss was due
to noise exposure, it was more than likely the cause.
The RO scheduled the veteran for an audiological evaluation,
but unfortunately, he failed to report to it. The evaluation
was then rescheduled, but he cancelled it on the same day it
was scheduled. Generally, when a veteran fails to report to
an examination without good cause, the claim will be decided
based on the evidence of record. 38 C.F.R. § 3.655 (2004).
It is not clear whether he had good cause to cancel the
second examination. But, since the claims are being remanded
for further development anyway, the RO can also re-schedule
him for an audiological evaluation. If he fails to report
without good cause, this should be noted for the record, and
the RO should adjudicate the claims in accordance with 38
C.F.R.
§ 3.655 (2004).
Finally, the veteran submitted a W-2 form indicating he is
receiving money from the Social Security Administration
(SSA). It is not clear whether he is receiving retirement or
disability benefits. The RO should contact the SSA and find
out whether he is receiving disability benefits. If so, an
attempt must be made to obtain those records. See, 38 C.F.R.
§ 3.159(c)(2) (2004) (VA has a duty to assist the veteran in
obtaining records in the custody of a Federal department or
agency.); see, too, Murincsak v. Derwinski, 2 Vet. App. 363
(1992).
Accordingly, this case is REMANDED to the RO for the
following:
1. Obtain all relevant records of VA treatment or
evaluation of the veteran since his discharge in
1979, which are not already on file. This should
include records from VA facilities in Vineland and
Cape May, New Jersey, and Wilmington, Delaware.
2. Locate the veteran's service medical records
(SMRs) and military personnel records and
associate them with the claims file. If, after an
exhaustive search, it is determined the records
have been lost, document this fact and note all
attempts that were made to locate them.
Then, if appropriate, notify the veteran of the
need to submit alternate forms of evidence in
lieu of missing SMRs and personnel records. This
notification should include a list of those
alternative documents listed in the
VA Adjudication Procedure Manual, M21-1, Part
III, Chapter 4, Paragraph 4.25(c), and an
explanation of the veteran's and VA's respective
responsibilities in obtaining those documents
under 38 C.F.R. 3.159(c) (2004).
3. Prepare a letter asking the USASCRUR to provide
any available information that might corroborate
the veteran's in-service stressor. In particular,
any reports of the rape and murder of a Vietnamese
woman in the vicinity of the Cam Rahm Bay Air
Force Base in October 1969. Send USASCRUR copies
of personnel records that show the veteran's
service dates, duties, and units of assignment,
etc.
4. Schedule the veteran for a VA examination,
including audiometric testing, to determine
whether he has bilateral hearing loss and
tinnitus. If either is present, the examiner is
asked to express an opinion as to whether it is at
least as likely as not related to noise exposure
during his military service. The claims folder
must be made available to the examiner for review.
5. Once all records described in this remand have
been associated with the claims file, if possible,
have the VA doctor who examined the veteran in
September 2001 for PTSD review the file and submit
an addendum to that earlier report. In this
addendum, he should verify his diagnosis of PTSD
based upon a complete review of the record. If
the veteran has PTSD, he should provide the
rationale and basis for that diagnosis. He should
also state whether it is at least as likely as not
the PTSD is of service origin in light of the
veteran's other stressors (e.g. his substance
abuse, mugging, and incarceration). If, for
whatever reason, it is not possible to have that
same VA examiner comment further, then obtain an
opinion from another examiner equally qualified to
make this important determination. (Note: if the
latter situation arises, this may require having
the veteran reexamined.)
If no opinion can be rendered, without resorting
to pure speculation, explain why this is not
possible.
It is absolutely imperative that the VA examiner,
whomever designated, has access to and reviews
the claims folder for the veteran's pertinent
medical history. This includes a complete copy
of this remand, and any additional records
obtained from VA treatment facilities. The
examiner must note in the addendum that he or she
has reviewed the claims file.
6. Contact the Social Security Administration (SSA)
to find out whether the veteran has ever filed a
claim for disability benefits. If so, obtain a
copy of that agency's decision concerning his
claim for disability benefits, including any
medical records used to make the decision, copies
of any hearing transcripts, etc.
7. Review the claims file. If any development is
incomplete, including if the examination reports
do not contain sufficient information to respond
to the questions posed, take corrective action
before readjudication. 38 C.F.R. § 4.2 (2004);
Stegall v. West, 11 Vet. App. 268 (1998).
8. Then readjudicate the veteran's claims. If they
remain denied, prepare a supplemental statement of
the case (SSOC) and send it to the veteran and his
representative. Give them time to respond before
returning the case to the Board for further
appellate consideration.
No action is required of the veteran or his representative
until further notice is received. By this action, the Board
intimates no opinion, legal or factual, as to the ultimate
disposition warranted in this case.
The veteran has the right to submit additional evidence and
argument concerning the claims the Board has remanded to the
RO. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
_________________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).